Law: Civil Procedure Code (V of 1908)

Section: 13,190,20

Law: Constitution of Pakistan, 1973

Section: 10-A

(a) Civil Procedure Code (V of 1908)--- ----O.IX, R.13, O.V, Rr.19 20---Constitution of Pakistan, Art.10-A---Ex-parte decree, setting aside of---Merits of original lis to be considered---Failure to examine serving officer---Effects assailed the dismissal of their application for setting aside ex-parte proceedings as well as decree, which was dismissed on the sole ground of li mitation---Validity---High Court observed that nothing was brought on file to adjudge that the defendants were avoiding service and without recording of the statement of process server to that effect, their substituted service through issuance of proclamation was not warranted---Question of limitation in institution of suit and locus standi of plaintiff being legal propositions were required to be considered by the Trial Court but without taking any pains, ex-parte decreed the suit merely being influenced by the fact that there was no rebuttal to the stance of the plaintiff---Even otherwise, while dealing with application for setting aside ex-parte decree, merits of the original lis could be considered---Summary rejection of the application was against the principles of natural justice as well as the concept of fair trial guaranteed by Art. 10-A of the Constitution---Revision petition was allowed, impugned orders were set aside and the Trial Court was directed to re-decide the application for setting aside ex-parte proceedings and decree. Hassan Din and another v. Jalal Din and 2 others 1992 CLC 33 and Muhammad Idrees v. Muhammad Kashif 2008 MLD 1448 ref. (b) Civil Procedure Code (V of 1908)--- ----O.IX, R.13---Ex-parte decree, setting aside of---Merits of original lis to be considered---Scope---Court while dealing with the application for setting aside ex-parte decree can consider merits of the original lis. JUDGMENT CH. MUHAMMAD MASOOD JAHANGIR, JUSTICE:----- Inessential detail apart, respondent/plaintiff on the basis of mere receipt dated 28.02.1971 scribed on plain paper instituted suit for its specific performance against the petitioners before the learned Trial Court about thirty seven years thereafter on 19.03.2008. The assertion of the respondent was that his father had purchased…

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